论法律原则的生成

On Creation of Law Principle

原则的生成是人们因实践的需要而将一些法理念确立下来的结果。原则生成于个案当中 ,形式化于法学理论之上 ,它所依凭的是一种实践理性。原则的生成与相应的法理念被人们认为一物之两面。以社会学的方法发现原则 ,以法律家的眼光规范原则 ,以类推适用的方法拓展原则 ,此为原则为人所识的三条路径。原则通过立法与司法予以实证化 ,但主要是后者。

Creation of principle is a result that some law idea is established responding practice needs. Principle vegetates out of cases, and formalizes from law theory. Thus, it depends on a sort of practice ration. In fact, creation of principle & law idea relevant ratified is twain of a thing. There are three paths which principle is known by people that discover principle by sociological means, and criterion principle by vision of Templar, and open up principle by analogy apply. Principle is demonstrated by legislation & justice, but is the latter mostly.